Special Investigation Unit and Another v Msagala and Others (GP05/2020) [2021] ZAST 7 (30 April 2021)

Special Investigation Unit and Another v Msagala and Others (GP05/2020) [2021] ZAST 7 (30 April 2021)

The Special Tribunal found that the requirements for res judicata and lis pendens were not met. The parties are the same, but the cause of action and relief sought in the forfeiture application and the present action differ. The forfeiture order was limited to the listed assets as proceeds of unlawful activities, while the action seeks to hold the defendants personally liable for the deficit and other amounts. Relaxing the cause of action requirement to allow issue estoppel would not serve equity and fairness, especially given the defendants' vacillatory litigation conduct. The pending appeal does not conclusively determine the dispute, and staying the trial would only delay resolution....

Citation
[2021] ZAST 7
Parties
Plaintiff: Special Investigating Unit; Plaintiff: Transnet SOC Ltd; Defendant: Linyenga Makainene Herbert Msagala; Defendant: Linyenga Makainene Herbert Msagala N.O.; Defendant: Roberto Jorge Medonca Velosa N.O.; Defendant: Loretta Kgakgamatso Msagala; Defendant: Bonolo Mathulo Msagala; Defendant: IGS Consulting Engineers (Pty) Ltd; Defendant: Sipho Victor Sithole
Court
Special Tribunal
Jurisdiction
South Africa
Judgment Date
30 April 2021
Case Number
GP05/2020
Procedural Posture
Special Plea / Judgment on Special Pleas of Res Judicata and Lis Pendens Prior to Trial Commencement
Outcome
The special defences of lis pendens and res judicata raised by the first, second, fourth and fifth defendants are dismissed with costs.
Judges
L T Modiba
Legal Topics
Res Judicata, Lis Pendens, Once and for All Rule, Forfeiture of Assets, Breach of Employment Duties
Civil Procedure Commercial and Corporate Res Judicata Lis Pendens Once and for All Rule Forfeiture of Assets Breach of Employment Duties

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 9 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Special Investigating Unit

Plaintiff

Transnet SOC Ltd

Plaintiff

Linyenga Makainene Herbert Msagala

Defendant

Linyenga Makainene Herbert Msagala N.O.

Defendant

Roberto Jorge Medonca Velosa N.O.

Defendant

Loretta Kgakgamatso Msagala

Defendant

Bonolo Mathulo Msagala

Defendant

IGS Consulting Engineers (Pty) Ltd

Defendant

Sipho Victor Sithole

Defendant

Procedural Posture

Special Plea / Judgment on Special Pleas of Res Judicata and Lis Pendens Prior to Trial Commencement

Legal Issues

  1. 1 Whether the judgment delivered by Motlhe J on 17 November 2020 conclusively determined the dispute between the parties (res judicata).
  2. 2 Whether, when the pending appeal proceedings against the judgment by Motlhe J are determined, the dispute between the parties will be conclusively determined (lis pendens).
  3. 3 Whether the action should be disallowed on the basis of the once and for all rule.

Ratio Decidendi

The Special Tribunal found that the requirements for res judicata and lis pendens were not met. The parties are the same, but the cause of action and relief sought in the forfeiture application and the present action differ. The forfeiture order was limited to the listed assets as proceeds of unlawful activities, while the action seeks to hold the defendants personally liable for the deficit and other amounts. Relaxing the cause of action requirement to allow issue estoppel would not serve equity and fairness, especially given the defendants' vacillatory litigation conduct. The pending appeal does not conclusively determine the dispute, and staying the trial would only delay resolution....

Court Disposition

The special defences of lis pendens and res judicata raised by the first, second, fourth and fifth defendants are dismissed with costs.

Orders

  • The special defences of lis pendens and res judicata raised by the first, second, fourth and fifth defendant are dismissed with costs.